Balls v. Dampman

• Decision Date: 22 November 1888
• Citation: 69 Md. 390,16 A. 16
• Parties: BALLS v. DAMPMAN et al.
• Court: Maryland Court of Appeals

16 A. 16

69 Md. 390

BALLS

v. DAMPMAN et al.

Court of Appeals of Maryland.

November 22, 1888.

Appeal from circuit court, Baltimore county, in equity.

Bill by Bartholomew Balls against Sallie Balls Dampman, executrix of Elizabeth A. Balls, and Elizabeth Balls. From a decree dismissing the complaint, plaintiff appeals.

Argued before ALVEY, C. J., and BRYAN, MILLER, STONE, and McSHERRY, JJ.

E. C. Williams and Wm. H. Brune, for appellant. John I. Yellott and M. W. Offut. for appellees.

MCSHERRY, J. The appellant filed a bill in equity against the appellees, praying for the sale of a small parcel of land lying in Baltimore county, to the end that a promissory note held by him against Elizabeth A. Balls, deceased, might be paid. It is not necessary to set forth the several allegations of the bill. The land had been devised by the will of John Balls to the said Elizabeth A. for her life, coupled with a power in her "to will and dispose of the same in such manner as she may see fit, by any instrument, in the nature of a last will and testament, she may see proper to make." In the event of her death without exercising this power, the property was devised over by the testator to his two youngest daughters, Elizabeth Balls and Sallie Balls, equally. Elizabeth A. Balls possessing a small personal estate, sufficient, however, to pay all of her debts other than this note, the validity of which her executrix disputes, but owning no real estate, executed a will which was duly admitted to probate shortly after her decease. The first and second clauses of that will are the only ones to which we need allude. They are in these words: "First. I order and direct all my just debts and funeral expenses to be paid. Item. I hereby devise and bequeath to my two youngest daughters, namely, Elizabeth Balls and Sallie Balls, all my property, real, personal, and mixed, and all my estate of every kind whatsoever, and wheresoever situate." After the appellees had answered, resisting the claim of the appellant, and proof had been taken, the court below dismissed the bill of complaint, and from that decree this appeal has been taken. Thus the single question before us is whether the real estate mentioned is liable to be sold for the payment of the promissory note referred to. The solution of this question depends upon the construction to be placed on the clauses quoted from the will of Elizabeth A. Balls.

If the will of Mrs. Balls should be held not to be an execution of the power of appointment contained in her husband's will, it is perfectly clear that the property now sought to be sold under the proceedings in this case passed, upon the termination of Mrs. Balls' life-estate, to the devisees in remainder, Sallie and Elizabeth Balls, according to the express terms of the will of their father. Upon this hypothesis that property, therefore, manifestly could not be sold for or charged with the payment of the life-tenant's debts. This is so self-evident as to admit of no discussion. We have then merely to determine whether Mrs. Balls' will is a valid appointment, and, if it be so, to decide whether the property has been so disposed of by her as to be within the reach of the appellant as her creditor. It has been settled in this state, ever since the decision of the case of Mory v. Michael, 18 Md. 241, that "the execution of a power of appointment by will must be intended, and the intention must be clearly manifested." It was also held in that case, and has ever since been considered the undisputed law, until altered by the act of 1888, c. 249, which does not apply to this case, that "the rule of construction by which such an intention may be ascertained is explicit and exhaustive, and may be thus concisely stated: The intention to...